United States v. Damato

• Decision Date: 22 February 2012
• Docket Number: No. 10–3191.,10–3191.
• Citation: 672 F.3d 832
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Glenn J. DAMATO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

672 F.3d 832

UNITED STATES of America, Plaintiff–Appellee,

v.Glenn J. DAMATO, Defendant–Appellant.

No. 10–3191.

United States Court of Appeals, Tenth Circuit.

Feb. 22, 2012.

Melanie Susan Morgan, Morgan Pilate LLC, Olathe, KS, for the Defendant–Appellant.

Leon Patton, Assistant United States Attorney, (Barry R. Grissom, United States Attorney, with him on the briefs), Office of the United States Attorney, District of Kansas, Kansas City, KS, for the Plaintiff–Appellee.

Before LUCERO, SEYMOUR, and EBEL, Circuit Judges.

LUCERO, Circuit Judge.

Glenn Damato appeals his 96–month sentence for conspiracy to distribute marijuana. He argues that the district court erred in calculating drug quantity by including as relevant conduct a drug transaction that occurred more than thirteen years prior to the offense of conviction. The government argues only that this transaction was part of the “same course of conduct” as the offense of conviction. See U.S.S.G. § 1B1.3(a)(2). We cannot agree with the government's contention. The thirteen-year interval at issue far exceeds the gap between relevant conduct and the charged offense in the case law of any circuit including our own. Further, that extreme lack of temporal proximity was not mitigated by strong evidence of regularity or similarity. To the contrary, the government presented no evidence of regularity for an eight-year block of time between the putatively relevant conduct and the charged offense. And the government's evidence with respect to similarity, while substantial, was not so powerful as to compensate for the weight we must accord the temporal proximity and regularity factors given their extraordinary status in this case.

We nevertheless exercise our discretion to consider an alternative basis to affirm, and conclude that the prior transaction qualifies as relevant conduct because it and the offense of conviction were part of a “common scheme or plan.” See id. The earlier conduct was substantially connected to the offense of conviction; both featured common co-conspirators who worked together to procure a distribution quantity of marijuana from a source in Southern California. Because of this substantial connection, the prior transaction qualifies as relevant conduct.

We reject Damato's remaining contentions that that the district court should not have sentenced him as a leader or organizer of the charged conspiracy, and that his below-Guidelines sentence was substantively unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I

A

In August of 2004, a drug dog alerted to a package sent from Mark McPherson in Olathe, Kansas to Leon Livingston in San Diego, California. The package contained $30,000 in cash. When Livingston attempted to retrieve the package, he was arrested. An ensuing investigation revealed a cross-country, marijuana-distribution conspiracy involving Damato, McPherson, Livingston, Harold Michael Bower, Neal Limtiaco, Thomas Starr, and others.

McPherson, Bower, and Starr were indicted in April of 2006. All three eventually pled guilty to federal drug charges and provided statements detailing their involvement in drug trafficking. In April of 2008, Damato was charged with conspiracy to distribute 100 kilograms or more of marijuana along with Livingston and Limtiaco. The indictment alleged a conspiracy beginning in or about December 2003, and continuing to approximately March 30, 2006. All three defendants pled guilty. As with the previously indicted co-conspirators, Livingston and Limtiaco cooperated with law enforcement.

B

Damato pled guilty without the benefit of a plea agreement. The United States Probation Office prepared a Presentence Investigation Report (“PSR”) for Damato. Based on interviews of McPherson, Starr, Livingston, and Bower, along with information provided by law enforcement, the PSR attributed 782 kilograms of marijuana to Damato. This total included four transactions in which marijuana was seized from co-conspirators by police, and an estimate based on the amount of marijuana that could be purchased with the $30,000 seized in August 2004.

Although some of the drugs attributed to Damato had been physically seized by police, most of the drug quantity calculation derived from statements of co-conspirators. McPherson described two loads of marijuana delivered to Damato and Starr in 2003 or 2004, which he estimated contained 120 pounds each. Livingston stated that he received four or five packages of $30,000 from McPherson prior to his arrest (other than the package that had been seized), which the PSR estimated would purchase 68 kilograms of marijuana. Finally, Starr indicated that he helped to transport four loads of marijuana between October 2004 and August 2005, each of which contained 150 to 200 pounds. All of the transactions included in the PSR—both those for which drugs were recovered, and those in which no drugs were recovered—occurred between 2003 and 2006 during the charged conspiracy.

The PSR also included background information obtained from interviews with McPherson, Starr, and Bower. According to McPherson, he and Damato met in 1981. Damato was engaged in marijuana distribution at that time, with his suppliers located in Florida. McPherson was also engaged in marijuana distribution, and was using Starr to transport loads across the country. Sometime in the mid to late 1980s, Damato switched to a pair of marijuana suppliers located in California, one of whom was Livingston. However, McPherson stated that he and Damato were not “partners” then.

Around the same time, McPherson introduced Bower to Damato. McPherson had been using Bower as a driver to distribute marijuana, and Bower began working for Damato as well. Bower stated that he delivered marijuana five or six times for Damato in the 1990s, until he was arrested in 1995. Bower was incarcerated from 1995 to 2003.

McPherson also served time in prison in the 1990s. After he was released, McPherson reunited with Damato, who said he was still in the marijuana business and was still working with Starr. Damato and McPherson began purchasing marijuana from Livingston in 2003, and continued to do so until August 2004 when Livingston was arrested. Following Livingston's arrest, they began buying marijuana from Limtiaco. Starr, Bower, and others were paid to drive marijuana from California to various points in the Midwest during this time period. These delivery trips formed the basis of the PSR's drug quantity calculation.

Using a drug quantity estimate of 782 kilograms, the PSR recommended a base offense level of 30. It added four levels under U.S.S.G. § 3B1.1(a) because Damato was a leader or organizer of an extensive drug operation and subtracted three levels for acceptance of responsibility, yielding a total offense level of 31. Combined with a criminal history category of I, Damato's advisory Guidelines range was calculated at 108 to 135 months.

C

Damato objected to both the drug quantity calculation and to the leader or organizer enhancement. Specifically, Damato argued that he was not involved in a transaction in which three pounds of marijuana were seized, with the transaction which led to the seizure of $30,000 in cash, or with one of the transactions from which drugs were not recovered. He also objected to the “paragraphs within the [PSR] based on cooperator Mark McPherson's statement that [Damato] was involved.”

The government also objected to the PSR's drug quantity estimate. It submitted a spreadsheet listing nineteen total transactions which the government claimed involved Damato. The spreadsheet indicates that the factual bases for the transactions were statements from McPherson and Bower, along with “hotel records, GPS tracking information, and law enforcement reports.” The spreadsheet attributed 2298 pounds (1042.4 kilograms) of marijuana to Damato from seventeen transactions alleged to have occurred during the charged conspiracy. It also included two additional transactions as relevant conduct: A 1995 occurrence in which Bower was arrested with 62.5 pounds (28.35 kilograms) of marijuana, and a January 1990 incident in which McPherson and Livingston were arrested for attempting to purchase 1200 pounds (544.32 kilograms) of marijuana from an undercover Drug Enforcement Agency (“DEA”) agent. The government thus argued that Damato was responsible for a total of 3560.5 pounds (1615 kilograms).

The district court held a sentencing hearing to consider these objections. Robert Hawkins, a financial investigator for the DEA, was the only witness to testify. Hawkins provided hearsay testimony relayed from co-conspirators McPherson, Bower, Livingston, and Limtiaco, along with information contained in various law enforcement reports. He claimed that “for a period [of] probably 25 years,” Damato, McPherson, Bower, Livingston, “and others were for the most part trafficking marijuana, one or more of them all the time.”

Hawkins discussed the support behind the nineteen entries in the government's spreadsheet. He provided a detailed description of the first fifteen transactions, all of which occurred between 2003 and 2006. Many of these transactions were supported by hotel records and GPS tracking data that had been obtained by law enforcement.

In addition, Hawkins provided testimony on the two claimed relevant conduct transactions. He stated that McPherson and Livingston had been arrested, and eventually served time, for attempting to purchase 1200 pounds of marijuana from an undercover DEA agent in January of 1990. Based on statements from Bower, McPherson, and Livingston, Hawkins testified that Damato had been involved in the transaction, and was at Livingston's home waiting for McPherson and Livingston to return with the drugs. Damato left the house with a bag of cash when he learned of the arrest and was never apprehended. Hawkins further testified about statements made by Bower regarding a 1995 transaction. As the PSR indicated, Bower...